JUDGMENT

V. Bhargava, J. - This is an appeal filed by the State of Uttar Pradesh against a judgment of a learned single Judge of this Court allowing a petition under Article 226 of the Constitution. By his judgment the learned single Judge quashed an order of compulsory retirement of the respondent.

2. The respondent, Madan Mohan Nagar, was first appointed in 1931 on one year's probation to the post of the Custodian, Sarnath Museum, Banaras, under the Archeological Department of the Government of India. In 1939 his services were lent to the U.P. Government, and he was appointed on the re-commendation of the Provincial Public Service Commission, as Curator of the State Museum, Lucknow, on a scale of pay of Rs. 250/- to Rs. 850/-. In the year 1953 the State Government decided to upgrade the post of Curator to a post of Director, State Museum, Lucknow, in the U.P. Educational Service (Senior Scale). After upgrading the post, the respondent was appointed to it. Thereafter, the respondent continued in service holding this post of Director, State Museum, Lucknow, until he was compulsorily retired by the order of the Governor dated the 28th July, 1960. The order directed his compulsory retirement with effect from the 1st September, 1960. Before this order was made, the respondent had applied for fixation of his seniority in the U.P. Educational Service (Senior Scale). That was in the month of June, 1954, but that request was rejected on the ground that he was holding an ex-cadre post in the U.P. Educational Service (Senior Scale) and was, therefore, not entitled to have his seniority determined with reference to the officers holding posts in the cadre of that service. The order of retirement dated the 28th July, 1960, purported to be under article 465-A and Note 1 of the Civil Service Regulations. On these facts, the petitioner-respondent approached this Court for the quashing of the order on several grounds. One ground was that the order of his compulsory retirement dated July 28, 1960, amounted to an order of punishment of removal covered by Article 311 of the Constitution, and, since that order had been made without giving him any opportunity to show cause against the action proposed, that order was void. The second ground raised by the petitioner-respondent was that he was not a member of any of the services enumerated in article 349-A of the Civil Service Regulations and consequently the provisions of article 465-A, Note 1 thereto were not applicable to him as their operation was confined to members of the services mentioned in article 349-A. The third ground was that the order impugned had been passed mala fide at the instance of Sri Mohammad Zaheer, who was a Joint Secretary to the U.P. Government in the Department of Cultural Affairs and Scientific Research.

3. The learned single Judge, though allowing the petition of the respondent, did not base his order on any of the three grounds mentioned above. On the first ground about the applicability of Article 311 of the Constitution, the learned Judge was of the view that, though the respondent was given no opportunity to be heard before he was made to retire, it could not be said that there had been non-compliance with the requirements of Article 311 of the Constitution because no such compliance is needed in a case where the decision to retire is founded on a statutory or contractual right and is made in the exercise of some valid power. In this light, the learned Judge proceeded to examine the validity of the rule contained in article 465-A read with Note 1 appended to it, even though its validity had not been specifically challenged in the writ petition. The learned Judge came to the view that article 465-A with its Note 1 was ultra vires Articles 14 and 16 (1) of the Constitution. Thereupon, he held that the rule being invalid the order retiring the respondent compulsorily was void, though without specifically laying down that it was void on the ground of violating the provisi